1. These are connected cases. The parties in both the cases are the same. The question that arises for consideration is also the same. The revenue is the petitioner in both the revisions. The same assessee - M/s Kerala Distilleries and Allied Products (P) Ltd. (hereinafter called the Distilleries) -is the respondent in both the revisions. The matter arises under the Kerala General Sales Tax Act, 1963 (in short, the K.G.S.T. Act) for the assessment years 1984-85 and 1985-86. In the revisions the revenue assails the common order passed by the Kerala Sales Tax Appellate Tribunal, Additional Bench Palghat (in short, the Tribunal) in Tribunal Appeal Nos. 288 and 289 of 1987 dated 18th March 1988.

2. The assessee is a company engaged in the manufacture and sale of Indian made foreign liquor. For the relevant assessment years under the First Schedule to the K.G.S.T. Act before its amendment by Finance Act 18 of 1987, Indian made foreign liquor, manufactured and sold by the assessee, was taxable under Entry 36 of Schedule I to the K.G.S.T. Act. It provided as follows :

" THE FIRST SCHEDULE

Goods in respect of which single point tax is leviable under sub-section (1) or sub-section (2) of S.5

Table:#1

Explanation. (1) Liquor means and includes toddy, wine, brandy champagne, sherry, rum, gin, whisky beer, cider, cocoa-brandy, arrack and all other distilled or spirituous or fermented beverages brought into or produced or manufactured in the state.

Explanation (2) Foreign liquor means any liquor manufactured in any country other than India and brought to . India."

The assessee had entered into an agreement with M/s Shaw Wallace and Company Limited for the manufacture and supply of various brands of Indian made foreign liquor, as early as 14th September 1982. A new agreement was entered into on 30th April 1984 to take effect from 1st May 1984 (pages 133 to 141 of the paper book). The assessee returned the taxable turnover on the basis of its sales to M/s Shaw Wallace and Company Limited. On this reckoning for the assessment year 1984-85 the assessment was originally completed on 7th November 1986 on a taxable turnover of Rs. 51,96,150. The assessing authority came to know that the assessee (distilleries) had delivered the entire Indian made foreign liquor sold by it to M/s Shaw Wallace and Company Limited, to the Kerala State Beverages M. M. Corporation (in short, the (Beverages Corporation). The assessing authority found that the assessee sold the goods to the Beverages Corporation when the delivery was made directly by the assessee to the Beverages Corporation. The plea of the assessee that it sold the Indian made foreign liquor to M/s Shaw Wallace and Company Limited and delivered the goods to the Corporation under instructions from M/s Shaw Wallace and Company Limited was not accepted. Invoices were raised by the assessee on M/s Shaw Wallace and Company Limited. It turned out that M/s Shaw Wallace and Company Limited, in turn, sold the goods to the Beverages Corporation at substantially higher price than that paid by them for the purchase of Indian made foreign liquor from the manufacturer (assessee). So, the assessing authority held that the sales made by the assessee to M/s Shaw Wallace and Company Limited of Indian made foreign liquor are mere "sales on paper". The correct turnover, on which the assessee is assessable, is the sale price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation on the goods supplied by the assessee. It was on this ground the assessing authority reassessed the turnover for the year 1984-85 on the assessee. The taxable turnover was refixed at Rs. 2,54,57,390. On the same lines the assessment was completed for the year 1985-86 also, fixing the taxable turnover at Rs. 5,13,57,740. The plea of the assessee, that it could be assessed only on the turnover represented by its sale to M/s Shaw Wallace and Company Limited, was negatived for both the years. In the appeals preferred by the assessee, the first appellate authority [the Deputy Commissioner of Agricultural Income Tax and Sales Tax (Appeals), Kozhikode] affirmed the findings and conclusion of the assessing authority to the, effect that the turnover on which the assessee is assessable will be the sale price paid by the . Beverages Corporation to M/s Shaw Wallace and Company Limited on the goods delivered by the assessee. The first appellate authority noticed that the payment made by the Beverages Corporation to M/s Shaw Wallace and Company Limited included the price paid for the goods supplied by M/s Shaw Wallace and Company Limited from other sources also and directions were given to exclude the price paid for the goods supplied by M/s Shaw Wallace and Company Limited from other sources, from the assessments of the assessee. In second appeals filed by the assessee, the Sales Tax Appellate Tribunal (in short, the Tribunal) posed the question as to what is the correct turnover at which the assessee has to be assessed. After noticing the rival pleas and the relevant documents, the Tribunal came to the conclusion that "the Revenue could not establish the case to treat the sale consideration realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation as the sale price realised by the assessee from M/s Shaw Wallace and Company Limited on the sale of Indian made foreign liquor manufactured by the assessee". So the Tribunal directed the assessing authority to treat the sales by the assessee to M/s Shaw Wallace and Company Limited as a proper sale and to assess the assessee on the sales consideration received from M/s Shaw Wallace and Company Limited. It is aggrieved by the aforesaid common order of the Tribunal, dated 18th March 1988, the Revenue has come up in revisions.

3. The revenue has formulated the following seven questions in the revision memorandum.

1. Whether on the facts and in the circumstances of the case the Sales Tax Appellate Tribunal was justified in law in holding that the alleged sale of liquor by the assessee to M/s Shaw Wallace & Company is the first sale of foreign liquor within the state that is exigible to tax in the instant case.

2. Whether on the facts and in the circumstances of the case, is it not open to the revenue to treat the alleged sale of liquor by the assessee to M/s Shaw Wallace and Company and the subsequent alleged sale of liquor by M/s Shaw Wallace and Company to the Beverages Corporation as devices to help the assessee to underbill the goods and thereby evade tax that is legally due to the revenue.

3. Whether, in the light of the provisions contained in S.19B of the K.G.S.T. Act, the finding and conclusions arrived at by the Tribunal in the instant case sustainable.

4. Whether, on the facts and in the circumstances of the case, is it not open to the revenue to ignore the alleged sale of liquor by the assessee to M/s Shaw Wallace and Company and to hold that the real sale of liquor to the Beverages Corporation in the, instant case was effected by the assessee and that such sale should be deemed to be the first sale of liquor within the State that is liable to tax and that the price paid by the Beverages Corporation towards the sale price of liquor is the turnover that is liable to tax.

5. Whether on the facts and in the circumstances of the case the Tribunal is justified in law in holding that "the substantially higher price realised by M/s Shaw Wallace and Company from the Beverages Corporation with the extra price realised by them for the property for goodwill and brand name" when no such contention has been raised in the grounds of appeal before the Tribunal.

6. Whether in the light of the provisions Contained in R.13(1) of the Foreign Liquor Rules, the Tribunal was justified in law in holding that the alleged sale of liquor by the assessee to M/s Shaw Wallace and Company has to be deemed as the first sale of foreign liquor which is liable to tax within the State.

7. Whether on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the sales tax alleged to have been collected while under-billing the goods is an allowable deduction in computing the taxable turnover of the assessee.

4. We heard Shri T. Karunakaran Nambiar (Senior Government Pleader) who appeared for the Revenue, and Shri K. Parasaran (Senior Advocate) and Shri C. Natarajan (Advocate) who appeared for the respondent (assessee). Though seven questions have been framed, no serious argument was advanced on question No. 3, which related to the finding on S.19B of the K.G.S.T. Act. It was fairly agreed at the Bar that in the light of the Division Bench decision of this Court in C. O. Devassy v. State of Kerala (81 STC 2 [LQ/KerHC/1990/602] ), question No. 3 should be answered in the affirmative, against the revenue and in favour of the assessee. In the light of the aforesaid Bench decision of this Court, we hold that S.19 B of the K.G.S.T. Act is totally inapplicable and no material was placed before us to justify the applicability of S.19 B of the K.G.S.T. Act. Similarly, it was common ground that the answer to question No. 7 depends upon our answer to the other questions - questions No. 1, 4 and 6 on the one hand and questions No. 2 and 5 on the other and if our answer to those questions is in favour of the assessee, in concurrence with the Tribunal, question No. 7 does not call for an independent consideration. We record the submission. So, for all practical purposes, we are concerned with the resolution of questions No. 1, 4 and 6, which practically go together, and questions No. 2 and 5, dealing with a different aspect.

5. The main point urged by the Revenue in the revisions was that the sale proceeds obtained by M/s Shaw Wallace and Company Limited from the Beverages Corporation should be treated as the sales turnover of the assessee [M/s Kerala Distilleries and Allied Products (P) Ltd.]. In that context, learned Senior Government Pleader, Mr. Nambiar also submitted that the sale by the assessee to M/s Shaw Wallace and Company Limited is only a paper transaction and it should be ignored. It was stated that in fact, and in law, the sale was by the assessee to the Beverages Corporation and the consideration paid by the Beverages Corporation to M/s Shaw Wallace and Company Limited should be treated as one paid to the assessee for the sale of goods. The above is the crux of the submission made by counsel for the Revenue, though focused from various angles. On the other hand, counsel for the assessee vehemently contended that there are two sales involved in the transaction. The first sale was by the assessee to M/s Shaw Wallace and Company Limited and the second sale was by M/s Shaw Wallace and Company Limited to the Beverages Corporation. The Indian made foreign liquor is assessable at the point of first sale. That is the sale which was effected by the assessee to M/s Shaw Wallace and Company Limited, and that alone could be brought to tax in the. hands of the assessee. The assessee had no privity with the contract entered into by M/s Shaw Wallace and Company Limited with the Beverages Corporation, and the amount paid by the Beverages Corporation to M/s Shaw Wallace and Company Limited has nothing to do with the sale effected by the assessee to M/s Shaw Wallace and Company Limited. Both the sales are independent. Their reality and independent existence cannot be ignored. There is no basis to ignore the two different and independent sales.

6. In order to appreciate the rival pleas advanced before us in greater detail, as also the findings of the Tribunal in that regard, it will be useful to extract R.52 (1) (as amended) of the Kerala Distillery and Warehouse Rules; R.11 and 13 (9) of the Foreign Liquor Rules and R.11 (1) of the Foreign Liquor Compounding, Blending and Bottling Rules. R.52 (1) of the Kerala Distillery and Warehouse Rules, 1968 as stood at the relevant time as per amendment is to the following effect:

"52. To whom issues for local consumption may be made. (1) Indian Made Foreign Spirit may be issued for consumption within the State only to the P. L. 9 licensees in the State."

The Explanatory note which is not part of the notification, but is intended to indicate its general purport stated as follows :

"Consequent on the formation of a Public Sector Corporation to function as the sole agency for distribution of foreign liquor, the wholesale dealers (F.L. 1 Licensees) will have to obtain their requirements of foreign liquor from F. L. 9 licensees in the State and F.L. R. (F.L. 2) and F.L. 5 (Hotel/Restaurant) licensees from F.L. 1 licensees in the State. It has therefore become necessary to enable the Foreign Liquor Bonded Warehouse licensee and F. L. 9 Licensee (Public Sector Corporation) to procure their requirements of foreign liquor from the distilleries operating in the State. The amendment is intended to achieve this object".

R.11 and 13(9) of the Foreign Liquor Rules are as follows:

"11. Transport.-No quantity of foreign liquor in excess of 4.5 litres shall be transported from one place to another within the State unless the same is covered by a transport permit issued by the Excise Inspector in charge of the Range of origin. A copy of such permit shall be forwarded by the Excise Inspector concerned to the Excise Inspector in charge of the Range to which the consignment is destined. The excise Inspector at the destination shall verify the consignment on arrival and see that the quantity is duly credited in the accounts in case the transport is a licensee:

Provided that rum provisioned and moved for consumption by Defence Service personnel may, during the period of emergency due to war, be transported without obtaining permits from the Excise Authorities. But the same shall be covered by a written permit (authorisation) as laid down in the second proviso to R.9".

"13. Licenses for possession, use or sale. Licenses for the possession and sale of foreign liquor or for possession or use of foreign liquor shall be of the following descriptions and in the forms appended hereto.

* * * *

(9) Licence for possession and supply of foreign liquor in wholesale by the bonded warehouse licensees to foreign liquor wholesale shop licensees (F. L. 1) in the State. Licences in Form F. L. 9 shall be issued by the Excise Commissioner only to those who possess a licence in Form B.W. 1 under the Foreign Liquor (Storage in Bond) Rules, 1961, on payment of an annual rental of Rs. 20,000. The licensee under this licence may also procure duty paid Indian made foreign liquor from the distilleries, breweries, compounding, blending and bottling units and F. L. 10 licensees operating in the State".

The explanatory note, which is not part of the notification, but is intended to indicate the general purport, stated as follows :

"Consequent on the formation of a Public Sector Corporation to function as the sole agency for the distribution of foreign liquor, the wholesale dealers (F. L. 1 licensees) will have to obtain their requirements of foreign liquor from the F. L. 9 licensees in the state and the Foreign Liquor Retail and F.L. 3 (hotel/restaurant) licensees from F. L. 1 licensees in the State. It has therefore become necessary to enable the Foreign Liquor Bonded Warehouse licensee and F.L. 9 licensee (Public Sector Corporation) to procure the requirements of foreign liquor from the Distilleries. Breweries and Compounding, Blending and Bottling units operating in the State. The amendment is intended to achieve this object".

R.11(1) of the Kerala Foreign Liquor (Compounding. Blending and Bottling) Rules, 1975 is as follows:

"11. Strength and issue of bottled liquors. (1) Liquors shall be issued from the finished products store only in bottles, and

(i) under bond for export; or

(ii) on payment of duty and other taxes, for consumption within the State to licensee authorised to purchase the same".

7. Counsel for the Revenue stressed the following aspects to conclude that the sale of Indian made foreign liquor was by the assessee to the Beverages Corporation, and not to M/s Shaw Wallace and Company Limited as it was made to appear on record. The aspects stressed are :

(i) As per law that existed during the relevant time, the assessee - distillery cannot sell Indian made foreign liquor to M/s Shaw Wallace and Company Limited. It can be sold only to the Beverages Corporation. [Reference was made to R.52 (1) of the Kerala Distillery and Warehouse Rules].

(ii) The assessee got the transport permit. (This is in accord with R.11 of Foreign Liquor Rules).

(iii) The assessee" (distillery) transported/sent the goods directly to the Beverages Corporation.

(iv) The legal formalities due for transport and delivery were done by the assessee.

On the above premises, it was contended that though in paper, there is an agreement between the assessee (distillery) and M/s Shaw Wallace and Company Limited, the sale was, in fact and in law, by the assessee (distillery) to the Beverages Corporation and so whatever sale consideration was paid by the Beverages Corporation for the supply of goods made to it may be to M/s Shaw Wallace and Company Limited - should be treated as a sale consideration paid/received by the assessee (distillery). Reliance was also placed on the decision of the Supreme Court in Mc Dowell and Company Limited v. Commercial Tax Officer (59 STC 277 [LQ/SC/1985/133] (SC)) to contend that the agreement between the assessee (distillery) and M/s Shaw -Wallace and Company Limited was only a "device" to defraud the Revenue and so the said agreement and acts purported to have been done in pursuance thereto, should be ignored. Our attention was drawn to the notice issued by the assessing authority dated 6th January 1987 (page 101 of the files), assessees reply thereto dated 30th January 1987 (page 105 of the files), the delivery note which accompanied the transport of the goods despatched by the assessee to the Beverages Corporation (page 120 of the files), the lorry receipt dated 15th January 1986 (page 122 of the files), invoice dated 15th January 1986 (page 123 of the files) and the revised assessment, order (pages 92 to 100 of the files). At this juncture, we should indicate that it is seen from the delivery note, lorry receipt and invoice (pages 120, 122 and 123 of the files) that the transport is made in pursuance to the sale by the assessee to M/s Shaw Wallace and Company Limited, that the goods are being despatched under instructions from M/s Shaw Wallace and Company Limited, that the consignor is the assessee and the person to whom the goods are consigned is the Beverages Corporation. The delivery note contained serial No. P. 393356 dated 15th January 1986. The lorry receipt at page 122, dated 15th January 1986, shows that the consignor is the assessee and the consignee is the Beverages Corporation and the goods transported are 200 c. boxes Bonopart Brandy and 400 c. boxes Directors Special Whisky, both admittedly the trade label of M/s Shaw Wallace and Company Limited. The invoice seen at page 123 of the paper book dated 15th January 1986 mentions the number of the delivery note - Serial No. P. 393356 - dated 15th January 1986 in conformity with the delivery note seen at page 120. The invoice is drawn by the assessee on M/s Shaw Wallace and Company Limited and the goods are specified or referred to as Bonopart Brandy and Directors Special Whisky, etc. The permit issued to the assessee for the transport, seen at page 124 of the paper book, also mentions the number of cases in conformity with the delivery note, the lorry receipt and the invoice, for 600 cases and the marks on packages are specified as Bonopart Brandy and Directors - Special Whisky. The said brand name is also specifically stated in the footnote. Form D. 15 dated 15th January 1986 issued by the Excise Inspector, addressed to the Manager of the Beverages Corporation also mentions the issue of a permit for the transport of the above mentioned goods.

8. Counsel for the assessee, Mr. K. Parasaran, stressed the following aspects. It was submitted that the only question posed before the Tribunal by the parties was what is the correct turnover at which the assessee is to be assessed (Paragraph 3 - page 15 of the paper book). The Revenue pleaded that the sale price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation is the correct sale price on which the assessee should be assessed. In order to substantiate the said plea, it was stated that M/s Shaw Wallace and Company Limited is only an agent of the assessee, who manufactured and supplied the goods direct to the Beverages Corporation (pages 18 and 23 of the paper book). This aspect of agency was rightly negatived by the appellate Tribunal in Para.6 of its order. No other aspect or point was argued before the Tribunal. This Court, considering the revisions under S.41 of the K.G.S.T. Act, can only scrutinise as to whether the Tribunal has decided erroneously or failed to decide any question of law. In other words, the question of law now sought to be advanced by the Revenue should have been specifically taken up before the Tribunal and the Tribunal should have either failed to decide the same or decided the same erroneously. A perusal of the various questions formulated in the revision memorandum would show that none of those questions were ever mooted before the Tribunal. So, it cannot be said that the questions now posed, arise for consideration in the revisions. Reliance was placed on a Bench decision of this Court in Vasudeva Pai v. State of Kerala (1960 KLT 1364) in support of the said plea. Proceeding further and placing reliance on various documents available in the paper book (pages 15, 20 to 23, 28, 29, 39 and 119 to 125) counsel argued that though there was only one delivery note, it reflected a plurality of contract - a sale by the assessee to M/s Shaw Wallace and Company Limited and the further sale by M/s Shaw Wallace and Company Limited to the Beverages Corporation, that there was a delivery of the goods by the assessee company to M/s Shaw Wallace and Company Limited, that title to the goods in the instant case (movable property) passed by delivery, that even if there is any illegality, it has no relevance, that illegality merely renders a contract unenforceable and not void and even under the illegal contract title can pass. This is so even if possession of the movable property is not given. It was argued that the factual sale by the assessee to M/s Shaw Wallace and Company Limited was not disputed by the Revenue, but only its legality. It was further contended that even if there was an infraction of the Abkari Laws, that cannot prevent the factual sale, by the assessee to M/s Shaw Wallace and Company Limited, which is crucial under the Sales Tax Law and for the infraction, if any, the penalties under the Abkari Laws alone can be invoked. It was stressed that admittedly M/s Shaw , Wallace and Company Limited purchased goods from others also. The goods manufactured, transported and delivered by the assessee to the Beverages Corporation, admittedly specified and bore the brand name or label of M/s Shaw Wallace and Company Limited. These salient features were taken note of by the Tribunal. Finally it was submitted that the agreement between the assessee and M/s Shaw Wallace and Company Limited was a "legitimate business transaction". It had a business purpose. The brand name of the goods solely belonged to M/s Shaw Wallace and Company Limited and it is under that brand name the goods, manufactured by the assessee, were delivered to the Beverages Corporation. They were so marketed under known or special labels or trade name. It is idle to contend that the agreement between the assessee and M/s Shaw Wallace and Company Limited is only a "device". Reliance was placed on the following decisions to substantiate the above aspects :

Bayyana Bhimayya and Sukhdevi Rathi v. The Government of Andhra Pradesh (12 STC 147 [LQ/SC/1960/345] SC), Four Point Garage Ltd. v. Carter [1985 (3) All. ER 12].

Benjamins Sale of Goods (1974 Edn.) Para.228 and 230, Benjamins Sale of Goods (1981 Edn.) page 121 - Para 230, Goods page 133, Sajan Singh v. Sardara Ali [1960 (1) All. ER 269 at p. 272 (PC)] Belvoir Finance Co. Ltd. v. Stapleton [1970 (3) All. E. R.664] at p. 667, Kingsley v. Sterling Industrial Securities Ltd. [1966 (2) All. E. R.414] at p. 426. Watts v. Seynour [1967 (2) Q.B. 647] at pp. 652 & 654, Chalmers Sale of Goods (17th Edn.) page 19, etc.

9. On hearing the rival pleas submitted before us, we are of the view that the plea of the assessee should succeed. We should bear in mind that in disposing of these revisions, the jurisdiction of this Court is limited, in that, interference is permissible only if the Tribunal has decided erroneously or failed to decide "any question of law" ....In other words, any question of law now put forward before this Court should have been specifically advanced before the Tribunal and it should have been either decided erroneously or the Tribunal should have failed to decide the question of law raised before it. From the order of the Tribunal it appears that many of the pleas and aspects now highlighted before us were never highlighted or advanced before the Tribunal. What is more, the controversy before the Appellate Tribunal centered round substantially on a question of fact, namely, what is the correct turnover at which the assessee should be assessed That, admittedly, will be represented by the price obtained by the sale of the goods by the assessees. Before the Tribunal the Revenue admitted that there was the sale of the goods by the assessees (paragraph 8 of the order). The sole question was, who is the buyer To whom was the goods sold by the assessee There was no plea nor any material either before the Tribunal or before us to substantiate that there was any privity between the assessee and the Beverages Corporation. The Revenue had no case that the assessee had entered into any contract with or sold the goods to the Beverages Corporation. What was sought to be made was, that though there was a contract for sale of the goods between the assessee and M/s Shaw Wallace and Company Limited, it should be ignored. The legality of the said sale alone was projected and not the factum of sale. The sale was not assailed as "sham" or a "make believe". It may be that the supply of the goods by the assessee was made to the Beverages Corporation. But it was as a equal to the contract between M/s Shaw Wallace and Company Limited and the Beverages Corporation. The supply of the goods was not made as a result of any agreement between the assessee and the Beverages Corporation. The interposition of M/s Shaw Wallace and Company Limited was attacked or assailed as a device by the Revenue and so the sale proceeds obtained by M/s Shaw Wallace and Company Limited from the Beverages Corporation was contended to be the turnover of the assessee for the purpose of the K.G.S.T. Act. That was the plea stressed before the Tribunal. That is a distinct and different plea from the one, that should be established, namely, that there was a sale by the assessee to the Beverages Corporation. There was no such plea. No such case was ever put forward at any point of time. Looked at from this angle, we should state that the Revenue has miserably failed to substantiate that it can assess the Distillery (the assessee) on the sale proceeds received by M/s Shaw Wallace and Company Limited from the Beverages Corporation. After adverting to the relevant facts, the Tribunal found that the goods were supplied and that consideration was realised by the assessee as per the invoice from M/s Shaw Wallace and Company Limited and it is not permissible to say that the consideration received by M/s Shaw Wallace and Company: Limited from the Beverages Corporation can be treated as the consideration, received by the assessee from M/s Shaw Wallace and Company Limited (paragraph 8 of the order). The findings aforesaid are largely findings of fact. They are based on material. In the light of the said findings, we are of the view that the conclusion is inevitable that the assessee can be assessed only for the amounts received by it from M/s Shaw Wallace and Company Limited and the sale proceeds for the sale of goods received by M/s Shaw Wallace and Company Limited from the Beverages Corporation has nothing to do with the fixation of taxable turnover of the assessee.

10. We find that the Tribunal had adverted to the following materials, amongst others, in evaluating the rival pleas advanced before it, by the assessee and the Revenue:

(1) The contract entered into between the assessee and M/s Shaw Wallace and Company Limited.

(2) The contract entered into between the assessee and Company Limited on the assessee requesting the supply of Bonopart Brandy and Directors Special Whisky to Kerala State Beverages Corporation, dated 9th January 1986. (Page 16 of the paper book).

(3) Delivery note in Form No. 26 (No. P. 393356) filled by the assessee in transporting the goods specifying as one in pursuance of a sale to M/s Shaw Wallace and Company Limited and the goods being despatched under the instructions from M/s Shaw Wallace and Company Limited to the Kerala State Beverages Corporation (M & M) Ltd., Ernakulam. (Page 120 & 121 of the paper book).

(4) Invoice specifying the Delivery Note No. 393356 dated 15th January 1986 raised by the assessee against M/s Shaw Wallace and Company Limited for the supply of 600 cases of Bonopart Brandy and Directors Special Brandy. (Page 123 of the Paper Book.)

(5) Lorry Receipt No. 1322267 dated 15th January 1986 mentioned in the above. (Page 122 of the paper book).

(6) Inspection Report of the Registrar of Companies, Kerala, dated 19th December 1986.

(7) Profit and Loss Account of the assessee company for the period ending 30th June 1985.

(8) Relevant provisions of the Abkari Act and the Rules,

11. The Appellate Tribunal adverted to the main or the operative portion of the assessment order, in Para.3 of its appellate order. (Page 18 of the Paper Book). It is as follows:

"As from 1st April 1984, the right for wholesale trade in Indian made foreign liquor is vested with the Kerala State Beverages. Manufacturing and Marketing Corporation only. As such the assessee being a manufacturer of Indian made Foreign Liquor should have effected its sales (which are wholesale) to the Beverages Corporation only and none else. Wholesale business if any other than to Beverages Corporation is therefore not legally cognisable, and therefore, the sale said to have been effected to M/s Shaw Wallace & Co., is only a sale in paper without actual bailment of goods and hence no sanctity can be attached to such sale. In this case though the amounts are received by M/s Shaw Wallace and Company, that is only as an agent of M/s Kerala Distillery who manufacture and supply the goods direct. Thus it will be clear that this 2 tier system is resorted to only with the sole view of evading payment of tax on the sales turnover to the Beverages Corporation."

12. The finding and conclusion of the assessing - authority were assailed. On an evaluation of the facts and circumstances available before it, the Appellate Tribunal entered the following detailed findings of fact as could be seen from the appellate order. (We are extracting the findings in detail, though there is repetition in some of them, only to show that the Appellate Tribunal adverted to the different aspects or facts of the issue from all angles).

(1) Beverages Corporation, a Government of Kerala Company, is vested with exclusive right for wholesale distribution of Indian made foreign liquor in Kerala. They hold a licence in F.L. 9. The assessing authority has not established any case indicating that the Beverages Corporation had any contract of purchase of Indian made foreign liquor from the assessee. On the other hand, the assessee had a "privity of independent sale" with M/s Shaw Wallace and Company Limited.

(2) The agreement between the assessee and M/s Shaw Wallace and Company Limited shows that the assessee has to blend and bottle Indian made foreign liquor under the supervision and direction of the representative of. M/s Shaw Wallace and Company.

(3) Clause.12 and 13 of the agreement show the brand name and the get-up of the Indian made foreign liquor and other products supplied to M/s Shaw Wallace and Company Limited are the sole property of M/s Shaw Wallace and Company Limited.

(4) The assessee does not have any right to use the said labels or brand names. They manufactured the products and labelled them as directed by M/s Shaw Wallace and Company Limited, The assessee invoices at a certain price on the sales made to M/s Shaw Wallace and Company Limited. Since the goods are branded, the assessee cannot sell the goods to anybody else other than M/s Shaw Wallace and Company Limited. It will be a violation of the agreement and M/s Shaw Wallace and Company can prohibit the assessee from selling the goods to anybody else.

(5) The higher price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation is on account of the brand name, such as "Bonapart", "Directors Special" etc.. of M/s Shaw Wallace and Company Limited. What is realised by the assessee from M/s Shaw Wallace and Company Limited is the sole price of the commodity. The goodwill and the brand name exclusively belongs to M/s Shaw Wallace and Company Limited. The assessee cannot realise any price for the same. The substantially higher price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation is on account of their goodwill and brand name. The assessee does not own that goodwill or brand name.

(6) There was a contract of sale between M/s Shaw Wallace and Company Limited and the Beverages Corporation and goods were procured and supplied by M/s Shaw Wallace and Company Limited from different sources, including the assessee. Money have been paid by the Beverages Corporation to M/s Shaw Wallace and Company Limited. The assessee has not received any money from the Beverages Corporation.

(7) No case has been made out by the assessing authority to show that the assessee has, in fact, received anything more than what is contracted for. The assessee is not shown to have received any other remuneration. From the agreement, it is clear that the relationship between the assessee and M/s Shaw Wallace and Company Limited is that of seller and buyer and the Beverages Corporation is a stranger to the transaction. There is no element of agency in the transaction,

(8) M/s Shaw Wallace and Company Limited cannot be treated as an agent of the assessee. The assessee admittedly received orders for sale of foreign liquor from M/s Shaw Wallace and Company Limited and raised invoices for the sale. The sale price subsequently realised by M/s Shaw Wallace and Company Limited is neither accounted nor returned to the assessee. The moment goods are invoiced and put on lorry, the title to the property passes as per the agreement. In fact, or in law, there is no agency relationship between the assessee and M/s Shaw Wallace and Company Limited.

(9) The assessee company was earning profit and there is no deliberate under-invoicing. The higher re-sale price secured by M/s Shaw Wallace and Company Limited is the result of the special brand which is indicated by M/s Shaw Wallace and Company Limited for their printed products.

(10) What was secured by the manufacturer is the reasonable price for the goods sold by it. What was secured by the buyers (M/s Shaw Wallace and Company Limited) is the higher price which it commands by virtue of it being the brand owner: What is realised by the subsequent seller, i.e., the brand owner, is the price realised by them for their own property in the goodwill of the brand name.

(11) The substantially, higher price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation is the extra price realised by them for the property in the goodwill of the brand name.

(12) It is an admitted position of the Department that there is a sale by the assessee. According to the Department, the sale by the assessee to M/s Shaw Wallace and Company Limited is not cognisable. Even assuming that the sale by the assessee to M/s Shaw Wallace and Company Limited is illegal, that need not be visited with a sales tax assessment at a price different from what is disclosed, unless it is established that a price different from what is disclosed is realised by the assessee.

(13) The assessee was engaged in the act of selling goods to M/s Shaw Wallace and Company Limited for a price agreed to between them. Even if there is a violation of the Abkari Rules in the transactions between the assessee and M/s Shaw Wallace and Company Limited, the matter should be dealt with under the relevant provisions of the Kerala Abkari Act and Rules framed thereunder. It is not necessary to decide whether the sale of the assessee to M/s Shaw Wallace and Company Limited is legal or not as the Revenue need look only at an accomplished fact. Plainly viewing, the transaction of sale is complete, when goods were delivered.

(14) When the assessee delivered the goods in the lorry, the title to the goods stands transferred M/s Shaw Wallace and Company Limited.

(15) The facts, indicated that the goods were despatched to the Beverages Corporation under import permits secured by M/s Shaw Wallace and Company Limited from the Beverages Corporation, under instructions from M/s Shaw Wallace and Company Limited.

(16) That the goods are delivered to the Beverages Corporation without a physical transfer to M/s Shaw Wallace and Company Limited is irrelevant. It is not necessary that the purchaser should take delivery to complete the sale. He could legally instruct the seller to deliver the goods to the nominee of the purchaser. M/s Shaw Wallace and Company Limited (the purchaser from the assessee) instructed the assessee to deliver the goods to the Beverages Corporation. Here there is a purchase by M/s Shaw Wallace and Company Limited and there is a subsequent re-sale. It is not open to the Revenue to say that it will not take cognisance of the sale by the assessee to M/s Shaw Wallace and Company Limited.

(17) The sale by the assessee to M/s Shaw Wallace and Company Limited and the sale by M/s Shaw Wallace and Company Limited to the Beverages Corporation are accomplished facts. The illegality, if any, in the transaction is wholly irrelevant to determine the sales turnover on which the assessee is rightly liable to sales tax. What is realised by the assessee is the sale price on the Indian made foreign liquor manufactured and sold by them without the brand name.

(18) There is nothing on record to show that, apart from the consideration expressed in. the invoices, the assessee received anything more. There is no evidence to indicate that the invoices raised are under-valued. The higher price realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation is for their brand name. S.19B of the does not have any application to the facts of this case.

(19) The Revenue has not established a case to treat the sale consideration realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation as the sale price realised by the assessee from M/s Shaw Wallace and Company Limited on the sale of Indian made foreign liquor manufactured by it.

13. Counsel on both sides took us through the relevant portions of the agreement executed between the assessee and M/s Shaw Wallace and Company Limited, the various documents produced in the Paper Book and also the orders passed by the assessing authority, the first appellate authority and the Appellate Tribunal. On a fair and proper reading of the order of the Appellate Tribunal, we are of the view that the findings and the conclusion reached by the Appellate Tribunal are in accordance with law. The detailed findings entered by the Appellate Tribunal, which we have extracted in Para.12 supra, are based on material available before it. Counsel for the Revenue could not successfully contend that the various findings arrived at by the Appellate Tribunal are not based on any material or they are perverse or arbitrary. We are of the view, that the findings and the conclusion arrived at by the Appellate Tribunal are logically in accord with the documents available in the case. We shall now broadly advert to this aspect. Admittedly, the assessee company had entered into a contract with M/s Shaw Wallace and Company Limited for the manufacture and supply of. Indian made foreign liquor, products to be marketed by M/s Shaw Wallace and Company Limited under the trade name of M/s Shaw Wallace and Company Limited. The specifications and tolerances required by M/s Shaw Wallace and Company Limited should . be adhered to. The assessee will allow M/s Shaw Wallace and Company Limited to post its technical representatives at the Distillery to test and record the quality etc. The essences/blending materials required for the production of I.M.F.L. products under the agreement will be supplied by M/s Shaw Wallace and Company Limited and the blending with the spirit manufactured/procured by the Distillery will be done by M/s Shaw Wallace and Company Limiteds representative, sent for the purpose from time to time. The assessee shall supply the LM.F.L. products and deliver them to M/s Shaw Wallace and Company Limited in accordance with the directions in bottles sealed, labelled and packed in cartons and title to the goods will pass to M/s Shaw Wallace and Company Limited the moment such I.M.F.L. products are put on lorries and documents of title taken by the assessee in accordance with the instructions given by M/s Shaw Wallace and Company Limited. It was specifically agreed that the brand names and the get up in which the I.M.F.L. products are supplied to M/s Shaw Wallace and Company Limited and which will be sold by M/s Shaw Wallace and Company Limited are the sole property of M/s Shaw Wallace and Company Limited and the assessee/ Distillery has no right and shall not at any time claim any right whatsoever to the use of the said labels, brand names or get-up of the I.M.F.L. products. M/s Shaw Wallace and Company Limited entered into a distinct and different agreement with the Beverages Corporation for the supply of Indian made foreign liquor under its brand name. M/s Shaw Wallace and Company Limited had brand names, such as "Bonapart Brandy", "Directors Special Whisky", etc., and the delivery order form issued by M/s Shaw Wallace and Company Limited on the assessee, the delivery note filled up by the assessee for the transport of the goods to the Kerala State Beverages Corporation, the invoices raised by the assessee against M/s Shaw Wallace and Company Limited and the lorry receipt, contained the brand name or label, which exclusively belong to M/s Shaw Wallace and Company Limited, as "Bonapart Brandy" and "Directors Special Whisky", etc. The delivery note specified that the goods . were sold by the assessee to M/s Shaw Wallace and Company Limited. The invoice was also to the same effect. Since the goods are labelled containing the brand name of M/s Shaw Wallace and Company Limited, the assessee could not sell the goods to anybody else other than M/s Shaw Wallace and Company Limited or deliver the goods to any other person except under instructions from M/s Shaw Wallace and Company Limited. It is evident that the higher price realised by M/s Shaw Wallace and Company Limited is on account of their goodwill and brand name. The assessee never received any money from the Beverages Corporation. The assessee was paid only by M/s Shaw Wallace and Company Limited. The relationship between the assessee and M/s Shaw Wallace and Company Limited is that of seller and buyer. The Beverages Corporation was not a party to the agreement, entered into between the assessee and M/s Shaw Wallace and Company Limited. The moment the goods are invoiced and put on lorry, the title to the property passes to M/s Shaw Wallace and Company Limited. The goods were sent to the Beverages Corporation by the, assessee only on instructions from M/s Shaw Wallace and Company Limited. The assessee looked only to M/s Shaw Wallace and Company Limited for the price of the goods supplied by it. These broad facts were not questioned before us. They are matters on record. On the basis of the above unassailable facts, we are of the view that the various, findings and conclusion entered by the Appellate Tribunal (extracted in Para.12 supra) are justified, reasonable and proper. Indeed, counsel for the Revenue did not question the existence of the above broad features adverted to by us. If the broad features adverted to by us are unassailable, the conclusion is inevitable, that the Revenue has miserably failed to substantiate that it is entitled to treat the sale consideration realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation as the sale price realised by the assessee from M/s Shaw Wallace and Company Limited on the sale of Indian made foreign liquor manufactured by it.

14. In the light of the above discussion, it is not really necessary to deal at. length with the various aspects submitted before us by counsel for the assessee. We should add that the points of law submitted for acceptance are really substantiated by the decisions brought to our notice, We will indicate the said aspect only in a broad manner. Though there is only one delivery note, it may evidence or show a plurality of contract - Bayyana Bhimayya and Sukhdevi Rathi v. The Government of Andhra Pradesh (12 STC 147 [LQ/SC/1960/345] (SC)); and Four Point Garage Ltd. v. Carter (1985 (3) All ER 12). The delivery note available in this case, at page 120 of the paper book, really points out a sale by the assessee to M/s Shaw Wallace and Company Limited, though the ultimate consignees were the Beverages Corporation. It also shows that the goods are despatched under the instructions from M/s Shaw Wallace and Company Limited. That could only be under a distinct and separate contract between M/s Shaw Wallace and Company Limited and the Beverages Corporation. The passages from the leading text books - Benjamin Sale of Goods (1974 Edn.) Para.228 and 230, Benjamin Sale of Goods (1981 Edn.) page 121, Para.230 and Goode page 133 - Indicate that illegality merely renders a contract unenforceable and not void. Title to moveable property can pass under an illegal contract of sale. The decisions - Sajan Singh v. Sardara Ali ( 1960 (1) All ER 269 to 272 (P.C.)). Belvoir Finance Co. Ltd. v. Stapleton (1970 (3) All R 664 at 667) Kimgsley v. Sterling Industrial Securities Ltd. (1966 (2) All E.R. 414 at 426). and Watts v. Seymour ((1967) 2 Q. B. 647) at pp. 652 and 654 and Chalmers Sale of Goods (17th Edn.) page 19, indicate that where property in goods (moveable) is transferred in pursuance to an illegal transaction, it remains in the transferee notwithstanding the illegality. The above decisions, if applied to the facts of this case, would show that as per the law as it stood then, even if the sale by the assessee/Distillery of Indian made foreign liquor to M/s Shaw Wallace and Company Limited was illegal, the title to the goods passed to M/s Shaw Wallace and Company Limited on delivery. The contract entered into between the assessee/Distillery and M/s Shaw Wallace and Company Limited may be illegal; but that will not in any way affect the passing of the title to the goods to the transferee M/s Shaw Wallace and Company Limited. This is so even if physical possession was not given to M/s Shaw Wallace and Company Limited ; but was given only to the nominee of M/s Shaw Wallace and Company Limited - the Beverages Corporation. We are fortified in this view in the light of the dicta in the aforesaid decisions. So, the main thrust of the argument of counsel for the Revenue based on R.52(1) of the Kerala Distillery and Warehouse Rules, that the sale by the assessee to M/s Shaw Wallace and Company Limited should be ignored or is of no legal consequence, cannot be accepted. We are of the view, that the title to the goods passed to M/s Shaw Wallace and Company Limited. The amount realised by the assessee company from M/s Shaw Wallace and Company Limited alone can form its turnover.

15. Before closing, we will advert to the plea of counsel for the Revenue, based on Mc Dowell and Company Limited v. Commercial Tax Officer (59 STC 277 [LQ/SC/1985/133] (SC)), to content that the agreement between the assessee and M/s Shaw Wallace and Company Limited is only a "device" to defraud the Revenue. For more reasons than one, this argument should fail. There is no foundation on facts as to why it is surmised or alleged that the agreement entered into between the assessee and M/s Shaw Wallace and Company Limited is only a "device". Ordinarily, the apparent nature of the agreement should prevail, unless it is shown to be otherwise. Parties are entitled to arrange their affairs in any legitimate manner, within the framework of law. It is for the Revenue to prove by pointing out on the basis of materials or circumstances, that the agreement entered into between the assessee and M/s Shaw Wallace and Company Limited is a "device" - a ploy, an underhand scheme or trick, or dubious method or plan or scheme contrived or invented for some hidden ulterior object, and so not within the framework of law. That has not been done in this case. A mere assertion will not be a substitute for proof of facts.

16. The decision of the Constitution Bench of the Supreme Court in Mc Dowell and Company Limited v. Commercial Tax Officer (59 STC 277 [LQ/SC/1985/133] (SC)) turned on its own facts. The Andhra Pradesh Excise Act and the rules read together imposed on the manufacturer (seller) M/s Mc Dowell the liability for payment of excise duty. Payment of duty was a condition precedent for the removal of the liquor from the distillery. In Mc Dowells case ( 59 STC 277 [LQ/SC/1985/133] (SC)) the excise duty was paid by the buyer; as per an arrangement between the seller (manufacturer) and the buyer, that duty was to be paid by the buyer. The bill of sale prepared by the distillery (seller) showed only the price of liquor, excluding the excise duty. The Revenue took the view that excise duty payable by the manufacturer (seller), but which was paid by an arrangement between the manufacturer and the buyer, by the buyer, was actually part of the consideration for the sale and so should be included in the turnover of the seller (manufacturer) for determining the liability for sales tax. On facts, it was admittedly part of the consideration for the sale. The Court held that the payment of excise duty was the primary and exclusive obligation of the manufacturer and if payment was made under a contract or arrangement, by any other person, it would only be a meeting of the. obligation of the seller (manufacturer) and nothing more. It was held that the consideration for the sale is the amount charged by the manufacturer (seller) under its bill together with excise duty, which the buyer directly paid on sellers account and the excise duty was rightly included in the turnover of the manufacturer (seller). Justice Sri Ranganath Misra, delivering the main judgment in Mc Dowells case (59 STC 277 [LQ/SC/1985/133] (SC)) at pp. 292 and 295 stated thus:

"............... The consideration for the sale is thus the total amount and not what is reflected in the bill. We are, therefore, clearly of the opinion that excise duty though paid by the purchaser to meet the liability of the appellant (manufacturer), is a part of the consideration for the sale and is includible in the turnover of the appellant (manufacturer). The purchaser has paid the tax because the law asks him to pay it on behalf of the manufacturer.................................

Tax planning may be legitimate provided it is within the framework of law. Colourable devices cannot be part of tax planning and it is wrong to encourage or entertain the belief that it is honourable to avoid the payment of tax by resorting to dubious methods. It is the obligation of every citizen to pay the taxes honestly without resorting to subterfuges."

Justice Sri Chinnappa Reddy, delivering a concurring judgment, referred to the "fashionable" topic of "tax avoidance". After referring to a series of English decisions, the learned Judge noticed the change in judicial attitude to the tax avoidance devices. His Lordship also stated that in the country of its birth (England) the principles of Westminister of condoning tax avoidance have been given a decent burial. A change in the perspective or approach and exercise of vigil or watch by the Courts in cases where it is evident or discernible that a device to avoid tax is seen, was strongly voiced by Chinnappa Reddy, J. in the decision in Mc Dowells case (59 S.T.C. 277) at page 286. In particular, the learned Judge noticed the "emerging" techniques of interpretation propounded in W. T. Ramsay Ltd. v. I.R.C. ((1981) 1 All E.R. 865 (H.L.)), I.R.C. v. Burmah Oil Co. Ltd. ((1982) S.T.C. 30 (H.L.)) and Furniss v. Dawson ( (1984) 1 All E.R. 530 (H.L.)). Two later decisions of the Supreme Court have considered the scope of Mc Dowells case (59 S.T.C. 277) C.W.T. v. Arvind Narottam (AIR 1988 S. C. 1824 at p. 1829), and Union of India v. M/s Playworld Electronics Pvt. Ltd. (AIR 1990 S.C. 202) at p. 208. In the latter decision, delivering the judgment of the Bench, Sabyasachi Mukharji, J. stated thus:

"............... it is necessary to remember as observed by Lord Reid in Greenberg v. I.R.C. (1971) 47 Tax Cases 240 (H.L.) that one must find out the true nature of the transaction. It is unsafe to make bad laws out of hard facts and one should avoid subverting the rule of law."

The three decisions of the House of Lords, stressed by Chinnappa Reddy, J. in the decision in Mc Dowells case (59 S.T.C. 277) at p. 286 - Ramsay, Burmah Oil and Furnish - were considered in a later decision of the House of Lords in. Craven v. White ((1988) 3 All E.R. 495). There are subsequent decisions of the Court of Appeal in England on the subject. The latest is the one reported in Moodie v. I.R.E. (1991 (1) W.L.R. 930 (C.A.)). Various articles of interest regarding the new perspective or approach or emerging principle focussed in Ramsays case ((1981) 1 All E.R. 865 (H.L.)) and the subsequent decisions have appeared in Law Reviews. A few of them are:

(1982) 98 L.Q.R. 209, 1982 B.T.R. 200,

1983 B.T.R. 221, 1984 Cam. L.J. (Vol. 43) Notes p. 259,

1986 B.T.R. 327, 1987 B.T.R. 180 (220),

1988 B.T.R. 482, and 1991 B.T.R. 283.

The last article by William D. Popkin exhaustively deals with all aspects and shades of opinion. A close look at the above decisions and enlightened academic opinion, would go to show that the new or the emerging principle highlighted in Ramsays case, and focussed in the subsequent decisions of the House of Lords, the decision of the Supreme Court in Mc Dowells case (59 STC 277 [LQ/SC/1985/133] (SC) ), and the subsequent Court of Appeal decisions, is only a principle of construction of the relevant statute and a careful or vigilant analysis of the transaction as a whole. As stated by Sabyasachi Mukherji, J. in Union of India v. M/s Playworld Electronics Pvt. Ltd. (AIR 1990 SC 202 [LQ/SC/1989/303] ) at p. 208, the approach is to find out the true nature of the transaction. If in substance it is evident that the "deal" or the "transaction" was entered into for a business or a commercial purpose or reality - and not with a pre-planned accent on business effect alone i.e., when the deal or transaction had no other purpose other than tax mitigation - then it is not open to attack as a mere device or ploy or trick.

17. So, we are of the view, that only if the Revenue is able to demonstrate that a particular transaction was entered into with an accent on business effect alone (for the purpose of tax mitigation), totally without any business or commercial purpose or reality, the stage is reached to scan the entire deal carefully to find out whether any device or ploy or trick or dubious method was employed or contrived to defraud the Revenue. This is the central theme, that is projected or voiced in the new perspective or approach, or the emerging principle highlighted in the various decisions of the House of Lords and that of the Supreme Court of India referred to above. This is a case where there is overwhelming material to show that the contract entered into between the assessee and M/s Shaw Wallace and Company Limited had a business or commercial purpose. Indeed, the findings in Para.12 supra (Nos. 1 to 10 and 19) will go to show that the assessee manufactured and sold the goods in the brand name that exclusively belonged to M/s Shaw Wallace and Company Limited and it is those specific goods with the brand name and label that were delivered by the assessee to the Beverages Corporation. The assessee/Distillery is only a manufacturer of I.M.F.L. and M/s Shaw Wallace and Company Limited is a business house specialising in dealing such goods - without manufactory. The goods delivered to the Beverages Corporation bore the brand name, goodwill and label of M/s Shaw Wallace and Company Limited. That is a decisive circumstance to show that the agreement entered into between the assessee and M/s Shaw Wallace and Company Limited was based solely/really on commercial or business purpose, and it is a far cry to allege or assume that the agreement between the assessee and M/s Shaw Wallace and Company Limited had only a "business effect", and so a "device". There is no material to show that the agreement is a pre-ordained one, solely brought out for tax mitigation. It has not been brought out that the true nature of the transaction is not what it purports to be. In this view of the matter, we are of opinion that reliance on Mc Dowells case (59 STC 277 [LQ/SC/1985/133] (SC)) is wholly misplaced. We repel the argument of the Revenue to the contrary;

18. No other point was argued before us. In the result, we are of the view, that the common order, passed by the Kerala Sales Tax Appellate Tribunal, Additional Bench, Palakkad, in T. A. Nos. 288 and 289 of 1987, dated 18th March 1988, does not merit interference in revisions.

19. As we stated earlier, in Para.4 supra, Questions No. 1, 4 and 6 go together. Questions No. 2 and 5 governs a different aspect. (Answers to questions No. 3 and 7 have already been recorded). The finding, that the sale of liquor by the assessee to M/s Shaw Wallace and" Company Limited is the first sale of Indian made foreign liquor within the State, exigible to tax, is purely a finding of fact. The finding is based on material. Question No. 1 is answered against the Revenue and in favour of the assessee. On question No. 4, we hold that it is not open to the Revenue to ignore the sale of liquor by the assessee to M/s Shaw Wallace and Company Limited. The finding that there was a sale by the assessee to M/s Shaw Wallace and Company Limited is not assailable; no material is placed by the Revenue to ignore the apparent state of affairs. The sale by the assessee was to M/s Shaw Wallace and Company Limited and not to the Beverages Corporation. The sale to M/s Shaw Wallace and Company Limited is the first sale, and the sale by M/s Shaw Wallace and Company Limited to the Beverages Corporation is different and distinct and is the second sale and the price paid by the Beverages Corporation is not the turnover liable to tax in the hands of the assessee. Question No. 4 is answered against the Revenue and in favour of. the assessee. On Question No. 6 we hold that the Tribunal was justified in holding that sale of liquor by the assessee to M/s Shaw Wallace and Company Limited is the first sale, notwithstanding the relevant statutory provisions that existed during the relevant time. We answer the question against the Revenue and in favour of the assessee.

20. On Question No. 2 we hold that the Revenue has failed to prove or demonstrate that any "device", as alleged, was employed, that the true nature of the "deal", looked at as a whole, was only with a "business purpose" or "commercial purpose" and so genuine and real. We answer the question in favour of the assessee and against the Revenue. On question No. 5 we hold that the finding that extra price was realised by M/s Shaw Wallace and Company Limited from the Beverages Corporation for the property for goodwill and brand name is a finding of fact and it was validly adjudicated as an ancillary or incidental aspect to the main issue raised in the case. We answer the question against the Revenue and in favour of the assessee.

21. We dismiss the Tax Revision Cases with costs.